By Mark Gutglueck
An almost perfect marriage of politics and the law in San Bernardino County has been ongoing in Department V-5 at Victorville’s Joseph M. Campbell Courthouse since December 2. There, before Superior Court Judge Kawika Smith, Robert Daniel Rodriguez, a personal and political associate of Victorville Councilwoman Blanca Gomez, is standing trial on what was originally six misdemeanor counts.
Rodriguez had been charged with two counts of obstructing a police officer/resisting arrest; two counts of disturbing a public meeting, conspiracy to commit a crime and disrupting a business operation – stemming from his actions on three occasions, those being June 2, July 6 and July 20, 2021.
Gomez was present on all three occasions. She herself was cited or arrested and then charged as was Rodriguez on June 2 and July 20. Prosecutors have not sought to implicate her criminally in the goings-on of July 6
Gomez, 45, has been charged with one misdemeanor count of PC148(a)1, resisting, obstructing or delaying of a peace officer and one misdemeanor count of PC242 – battery, both stemming from the June 2 incident. She is additionally charged with two misdemeanor counts of PC148(a)1 – resisting, obstructing or delaying of a peace officer and one count of PC403 – disturbance of a public meeting, relating to her action on July 20.
While Gomez and Rodriguez are considered codefendants with regards to the crimes they are alleged to have engaged in on June 2 and July 20, Rodriquez, remarkably, has not waived his right to a speedy trial. He is therefore being tried separately from Gomez, who has consented to a delay.
Rodriquez does not hold elective office. Nevertheless, the San Bernardino County District Attorney’s Office is aggressively pursuing the case against him, in at least some measure because the proceedings are seen as a tune-up for the prosecution of Gomez, who because of her elected status and disfavor with certain elected officials allied with District Attorney Jason Anderson, is considered a high value target.
The June 2 incident took place on the premises of the Panera Bread bakery-café at 11838 Armargosa Road in Victorville while both Gomez and Rodriguez were customers there. Rodriguez, somewhat ill-advisedly, began vaping. When he was asked by an employee to step out of the café because vaping was not allowed indoors, things grew confrontational, resulting in sheriff’s deputies being summoned. While the deputies were yet en route, a dispute over Gomez’s efforts to use her cell phone to video what was occurring erupted. The situation devolved from there when deputies arrived on the scene, and alleged that both Gomez and Rodriguez were “trespassing” on the Panera Bread property, and came to the conclusion that Gomez’s efforts to use her cell phone to videorecord Maria Weatherbie, who had been involved in seeking to have Rodriguez desist in vaping, was tantamount to “battery.” The deputies requested that Rodriguez step outside the café. Rodriguez did so reluctantly, refusing to provide the officers with his identification when it was requested. He was handcuffed and detained, put into a sheriff’s department vehicle for a time but released after deputies determined who he was. Meanwhile, Gomez phoned Victorville Sheriff’s Station Captain John Wickum, to complain about the treatment she and Rodriguez had been subjected to. Both Gomez and Rodriguez were cited but not taken into custody.
Gomez was elected to the Victorville City Council in 2016. Nearly from the outset of her tenure in office, Gomez has clashed with her fellow and sister officeholders. As a newly elected official, she had an imperfect understanding of protocol and no mastery of parliamentary procedure, was out of step with many political precepts that are second nature for most elected officials, and found herself in disputes with her colleagues over votes taken or bypassed in the course of meetings. Some but not all of the difficulty Gomez experienced with her colleagues and which her colleagues experienced with her touched on issues that fell within the purview of municipal authority. The situation was exacerbated by Gomez’s efforts to extend her limited oversight as a city official to advocacy of immigrant rights and social issues that are beyond the scope of her elected position, but which she maintains she is at liberty to actively embrace. Her antagonistic and contentious style often involves provocative acts, as when she draped herself in a Mexican flag during a council meeting, and this has further alienated her from her elected colleagues. In her crusade against what she considers to be large-scale societal injustice, she comes across as having a chip on her shoulder, and she often takes recourse in accusing those resisting her efforts of having racist motivation. She is a Democrat, and her approach has not sat well with the Republican-dominated political establishment in both San Bernardino County and Victorville. Her often acerbic comments alleging deep-seated animus toward the region’s growing Latino population have proven particularly galling to her former and current Republican Hispanic city council colleagues, former Mayor Gloria Garcia, former Councilman Eric Negrete and current Councilwoman Elizabeth Becerra, who consider her tactics embarrassing and counterproductive.
Oftentimes, Gomez’s and her supporters’ use of video-recording devices, which is an essentially legal activity, has inflamed things.
It is of some note that in slightly more than half of San Bernardino County’s municipalities – Chino, Montclair, Ontario, Upland, Rancho Cucamonga, Fontana, Rialto, Colton, Grand Terrace, San Bernardino, Adelanto, Barstow and Needles – the mayor is directly elected. In the remaining eleven cities and towns – Chino Hills, Loma Linda, Highland, Redlands, Big Bear, Yucaipa, Hesperia, Apple Valley, Yucca Valley, Twentynine Palms and Victorville – the mayor is not directly elected, and rather that honorific is conferred upon a member of the city council in processes determined by the councils in each individual case. In Victorville, the loose tradition and custom was that the mayoralty was rotated among the council members as they accumulated experience in office, such that most council members could reasonably expect to be nominated and elected mayor pro tem – the vice mayor position – upon being elected to a second four-year term and would thereafter likely be elevated to the mayor’s post. At present, Gomez is the senior member of the city council, meaning she has been in office longer than any of her council colleagues. Nevertheless, she was never been given serious consideration as a nominee for mayor.
Despite the low regard Gomez is held in by her council colleagues, her message has nevertheless resonated with a cross section of the community, which redounded to her 2020 reelection to the council. She has a coterie of supporters who can be counted upon to turn out at public events and meetings, closing ranks with her and fending off the occasional attacks vectored at her from her opponents or those who have taken umbrage at the way she conducts herself.
Among those is Rodriguez, who had become, by early this year, a mainstay at city council meetings. A ruckus occurred during the July 6 meeting when city officials became warily regardful of Rodriguez and he reacted vocally and loudly. As a consequence, Victorville Mayor Debra Jones called for the San Bernardino County Sheriff’s deputies who were on standby to maintain order at the council meeting to take action, and Rodriguez was forcefully removed from the council chambers. The July 20 contretemps grew out of Mayor Jones objecting to Rodriguez, who was wearing a hat and what appeared to be a ski mask while sitting near Jones’ husband in the gallery within the council chamber, using a device to video-record the meeting. The circumstance was complicated by the consideration that Jones’ husband was also, apparently, recording the meeting, which was remarked upon by City Attorney Andre de Bortnowsky. Gomez was also using a camera to video-record. Mayor Jones vectored sheriff’s deputies to Rodriguez, after which a confrontation between deputies and Rodriguez ensued, with Gomez making verbal note that Mr. Jones was not being dealt with by deputies in the way in which Rodriguez was, and that she had herself video-recorded that discrepancy. When Gomez left her place at the council dais to move into the gallery, an altercation with deputies took place, and both she and Rodriguez were arrested.
The July 20 contretemps grew out of Victorville Mayor Debra Jones objecting to Rodriguez, who was wearing a hat and what appeared to be a ski mask while sitting near Jones’ husband in the gallery within the council chamber, using a device to video the meeting. The circumstance was complicated by the consideration that Jones’ husband was also, apparently, recording the meeting, which was remarked upon by City Attorney Andre de Bortnowski. Gomez was also using a camera to video-record. Mayor Jones vectored sheriff’s deputies to Rodriguez, after which a confrontation between deputies and Rodriguez ensued, with Gomez making note that Mr. Jones was not being dealt with by deputies in the way in which Rodriguez was, and that she had herself video-recorded that discrepancy. When she left her place at the council dais to move into the gallery, an altercation with deputies took place, and both she and Rodriguez were arrested.
The entire circumstance is fraught with a number of troubling considerations and overreaches. At play in the prosecution are misdemeanors, and, as misdemeanors go, ones that are hardly serious offenses in the scheme of matters. At issue, as well, is what might most accurately be considered childish behavior on one side met with immature reaction on the other that has been bootstrapped up, by the side with the greater political power and legal reach and influence, into a criminal prosecution. This has spotlighted a bias on the part of both the court and the district attorney’s office, illustrated by the consideration that this year there have been examples of the court and the prosecutor’s office refusing to accommodate a defendant, charged with murder and three felony enhancements, who has insisted upon going to trial at once without any further waiving of his right to a speedy trial. That defendant was denied a speedy trial on the basis of the court’s assertion that the COVID-19 crisis had created a circumstance in which a courtroom for such a lengthy trial could not be secured and a jury to hear the case could not be impaneled. In contrast, in Rodriguez’s case, involving what were originally six misdemeanors which on a granted motion from the prosecution has been reduced to five misdemeanor counts, the court indulged the prosecution in facilitating bringing the matter to trial at once, recruiting not just one but four prospective juries to hear the case, dismissing three of those panels after they were brought to the courthouse and seated in the courtroom in which Rodriguez is being tried. More telling still, the prosecutor’s office is devoting a substantial degree of its firepower on Rodriguez, despite the consideration that the crimes he is accused of amount to a low-level case that typically would be handed off to a rookie prosecutor. Instead, the district attorney’s office has engaged a substantial element of its available personnel to the matter, including devoting a prosecutor to the case whose primary assignments going back for more than a decade-and-a-half have been high profile murder and gangland trials. Simultaneously, no fewer than six experienced judges have bailed from the case, which is now being heard by a judge elevated to the bench in July and sworn in in August, who is now being pressured to conduct the proceedings in a fashion that will prevent the defendant from bringing to bear evidence and testimony to establish that, at least in the July 20 case involving his arrest along with Gomez, an associate and political affiliate of one of Gomez’s chief political rivals – the husband of Victorville Mayor Debra Jones – was engaged in activity no different than was Rodriguez when he was confronted by deputies and arrested, and Mr. Jones was neither prevented from engaging in that activity nor subjected to arrest. And perhaps most telling of all is that Rodriguez, on the basis of the six misdemeanor charges originally lodged against him which have now been reduced to five, remains in custody while hundreds of arrestees from around the county charged with far more serious crimes have been released.
On December 2, the case against Rodriguez had wended its way to the courtroom of Judge John Vander Feer. Previously, the case had been assigned to judges David Driscoll, Christopher Pallone, Dwight Moore, Scott Seeley and Ronald Gilbert, all of whom had gotten out from underneath it in some fashion. Under the U.S. Constitution, criminal defendants have a right to a speedy trial. According to California law and precedent, a speedy trial is defined as within 60 days of being charged for felonies and 30 days for misdemeanors. Since the complaint against Rodriguez had been executed on November 1 and Rodriguez had not waived his right to a speedy trial, the State of California had until, presumably, December 1 to initiate the trial. It had failed to do so. With that issue pending, Judge Vander Feer on the morning of December 2 determined that the parties were ready to go to trial and assigned the case to Judge Kawika Smith in Victorville Department 5.
At that point, appearing on behalf of the People of the State of California was Deputy District Attorney Britt Imes, who had filed the original complaint against Rodriguez and who has a considerable, indeed enviable, track record in major cases in the county, including murder, multiple murder and gang racketeering. There were discussions with Judge Smith held off the record in the courtroom and in his chambers, discussions relating to the witnesses to be called or potentially to be called. There were motions to exclude witnesses from the proceedings. There were two notable exchanges in this regard. One related to Deputy Travis Gagne, who had served as an investigating officer on the case. It was determined that Gagne would be exempted from the courtroom witness exclusion. Present in the courtroom was Gomez, who is considered a potential witness in the case. She was ordered to not have contract with the other potential witnesses, and she was ordered as well to not enter the courthouse parking lot or the courthouse until further notice of the court. The court minutes note that “The record will reflect that Blanca Gomez absconded from the courtroom while the court was giving orders to her and was returned to the courtroom by the bailiff. Also, while the court was giving orders to Blanca Gomez her back was turned to the court.”
There followed motions in limine, i.e., discussion of what issues would not be subject to litigation during the trial.
Thereafter, the first set of jurors, referred to as Panel A, was brought in for examination by both sides, those being Deputy Public Defender Matthew Canty for the defense and Deputy District Attorney Imes for the prosecution. Two of those in the juror pool were excused. The remainder of the jurors were ordered to return the following day, as was Rodriguez, who was yet in custody.
The morning of December 3, Deputy District Attorney Jason Wilkinson appeared for the people, as Canty, the son of the late legendary San Bernardino County defense attorney Joseph Canty, appeared to represent Rodriguez, who was present in the courtroom. The matter was continued until December 6.
On December 6, outside the presence of the jury, Canty filed and argued with regard to a Penal Code 1382 motion, which propounded that the case against Rodriguez had to be dismissed because his right to a speedy trial had been violated. Judge Smith denied that motion.
The defense made a motion for disallowing all of the prosecution’s witnesses from testifying because the prosecution had failed to provide timely disclosure of the witnesses to the defense team. Ultimately that motion was denied.
Judge Smith denied Canty’s motion for Rodriguez to be released from custody without having to post bail.
The court proceedings turned to an examination of the jury. Two groups of prospective jurors, one designated Panel A, which had been present in the courtroom on December 2, and the other designated Panel B, considered to be a back-up to Panel A, were present. The defense made a motion to dismiss all of the jurors because of an apparent error by the court prejudicial to the defendant. The court dismissed all of the jurors, both Panel A and Panel B.
On December 7, Wilkinson, Canty and Rodriguez were present but there was little substantive interaction other than scheduling of a bail hearing for the next day.
Early on December 8, Judge Smith heard from the defense with regard to witnesses called by the defense having failed to respond to subpoenas, and issues relating to juror confidentiality. There was further discussion relating to juror confidentiality issues, apparently pertaining to potential tainting of the jury pool by the prosecution and members of the Victorville political establishment.
It was revealed that witnesses the defense considers crucial to the case it intends to make were resisting having to testify, those being Mayor Debra Jones; Mayor Jones’ husband, Ernest Jones; Victorville City Manager Keith Metzler; Victorville City Attorney Andre de Bortnowsky; Assistant to the City Manager Jenelle Davidson and Victorville Municipal Purchasing Services Manager John Mendiola. The defense made a request for an order to show cause as to why the six should not be required to appear as witnesses.
There was discussion with regard to the release of a juror’s name, in apparent reference to the effort to demonstrate that the jury is being tampered with by the prosecution and/or elements within the city hostile to Gomez and therefore hostile to Rodriguez. Defense motions for the dismissal of the case on that basis and with regard to a violation of Rodriguez’s due process rights were made and denied.
Attention turned then to the prospective jurors to hear the case, those being Panel C present that day. Thereafter, due to unspecified considerations, Panel C in its entirely was dismissed. This represented the third jury panel that had been brought together to potentially hear the case and then was dismissed.
A second motion for dismissal based upon due process violations was made along with a motion for a bail reduction or release without bail. Smith took those motions under submission.
A fourth jury panel was considered, confidential information relating to its members considered by both the defense and prosecution and juror questioning took place. A prospective juror was dismissed and a jury to hear the case was impaneled and sworn in. The complaint against Rodriguez was read in open court.
Judge Smith ruled that Rodriguez’s bail would remain in place and he would not be released on his own recognizance.
On December 9, what was considered to be the official sixth day of trial, prior to the jury coming into the courtroom, Judge Smith granted the prosecution’s motion to dismiss one of the resisting arrest/obstructing a police officer charges against Rodriguez.
At 9:08 a.m. the opening statements by the prosecution began, followed by the defense’s opening statements, all of which were concluded by 9:37 a.m.
Thereafter came the testimony of Maria Weatherby, an employee at the Victorville Panera Bread bakery-café.
During Weatherby’s testimony, there were sidebar exchanges between the judge, prosecutor and defense counsel outside the earshot of the jury and subsequent discussions held while the jury was on recess from the courtroom. In an unusual request, Canty sought to have the recording of the investigating sheriff’s detective’s interview of Weatherby played for her to enhance her memory. The court granted that motion. Weatherby listened to the recorded questioning, and then she was subjected to Canty’s questioning before the jury. Weatherby’s testimony concluded.
Thereafter, prosecution witness Robert Harriman began his testimony. His testimony was briefly interrupted while a hearing was held outside the presence of the jury. At issue was footage of the courtroom security video from December 7. Judge Smith entered an order that the sheriff’s department, which fields the San Bernardino County court system’s bailiffs and maintains court security, provide copies of that footage to the prosecution and defense.
Harriman’s testimony resumed, punctuated by multiple sidebar conferences. Again, the defense requested that Harriman’s recorded interview with investigating deputies be played to him. That was granted and outside the jury’s presence, Harriman listened to the questions he had been asked and questions he had provided months ago. His testimony in front of the jury then resumed.
After multiple sidebars and off-the-record exchanges involving the judge, defense and prosecution, Harriman’s testimony continued and then concluded.
He was followed to the witness stand by another prosecution witness, Jorge Duran. Duran’s testimony had not concluded when the day’s court proceedings ended.
Duran returned to testify early today, Friday, December 10.
A video of the June 2 incident at Panera Bread café was played for the jury. Duran’s testimony resumed and a second video was played for the jury. Hearings were held outside the presence of the jury. Duran’s testimony before the jury resumed.
Further off-the-record exchanges occurred involving the judge, prosecutor and defense.
After 3 p.m. a second amended criminal complaint against Rodriguez was read.
Duran resumed his testimony after further off-the-record discussion, Canty made a motion to dismiss the charges against his client. Judge Smith denied the motion after the prosecution argued in opposition.
The trial is set to resume on Monday, December 13.
The San Bernardino County/Victorville political establishment has put a high premium on getting convictions against first Rodriguez and then Gomez. While indeed both may be guilty of some or all of the charges leveled against them, there is room for interpretation of several of the known facts the case involves. The case is remarkable for the level of intensity with which it is being pursued, and the backdrop of Gomez’s particular brand of political provocation which stands as the foremost feature of the entire misadventure. As irritating as Gomez’s style is, the incivility she is inclined to in her public deportment does not qualify, in the common interpretation applied to such things, as criminality. The effort to criminalize her and Rodriguez persists nonetheless.
A crucial variable in the equation is Judge Smith. For his entire legal career in San Bernardino County prior to being appointed to the bench in July by Governor Gavin Newsom, he fell outside the inner sanctum of the local politico/legal establishment. He began as a deputy public defender in 1995 and acceded to a supervisorial role in the office in 2014. He is assigned to the courthouse in Victorville, named after Judge Joseph Campbell, a Republican appointed to the bench in 1972 by then-Governor Ronald Reagan. Joseph Campbell’s mother was a groundbreaking member of the legal community as one of the first women to serve as a lawyer in the State of California. The Campbell family was a pillar in the Victorville community from the 1920s onward. Joseph Campbell was a member of the maiden Victorville City Council when the city incorporated in 1962. He was a no-nonsense judge who prided himself on being tough on crime, and he did not shy from sentencing those convicted of a capital crime in his courtroom to death. Shortly after he passed the bar in 1957, Joseph Campbell was at a Victorville Chamber of Commerce luncheon at which then-San Bernardino County District Attorney Lowell Lathrop was the guest speaker. Lathrop lamented what were then recent rulings by the Supreme Court, headed at that time by Chief Justice Earl Warren, which in Lathrop’s view were handicapping law enforcement, such as prohibitions against beating a confession out of a suspect. Lathrop inculcated this attitude in Campbell, and the need to be tough on crime informed Judge Campbell’s approach to administering the law and has been consistently reflected in the courthouse that today bears his name. Throughout the San Bernardino County court system the watchword has long been that the benefit of the doubt should be provided to those who represent the law and advocate on behalf of its enforcement and application – police officers, sheriff’s deputies and the prosecutor’s office. In Victorville especially, the converse of former Supreme Court Chief Justice Oliver Wendell Holmes’ dictum that “it is better that ten guilty go free than that one innocent is convicted” applies. At the Joseph Campbell Courthouse, criminals, or those accused of being criminals, are given no quarter. The standard there that applies is it is better that ten innocents are convicted to ensure that no one who is guilty goes free.
So intent on presenting a lock-tight case against Rodriguez on the misdemeanors he is charged with is the prosecution, it has given indication it anticipates the trial will not conclude until December 23, what will be at least a 16-day trial, a far lengthier process than is typically afforded most defendants charged with felonies.
This is the milieu that Judge Kawika Smith is now functioning within. He is under tremendous pressure to demonstrate that his days of limp-wristed advocating on behalf of criminals when he was a member of the public defender’s office are now behind him and that he is ready to stand up as a real man who is prepared to function as a judge in accordance with the trust placed in him by the Victorville and High Desert community and hold accountable those who break the law and defy the conventions of decent society and the Republican political establishment that is in ascendancy locally. A Democrat, Judge Smith is under scrutiny to see whether the partisanship he shares with the Rodriguez and Gomez defendants will have any bearing on the way he runs his courtroom. One of the reasons he was saddled with the Gomez and Rodriguez cases, aside from the consideration that no other judges wanted to be burdened with the matter, is the belief that based on his need to demonstrate that partisanship will have no bearing on his rulings, he is ready to be harsh in how he deals with the two miscreants who have placed themselves so squarely at odds with the ruling coalition in Victorville. So far, Judge Smith has shown himself worthy of being considered a part of the team of no-nonsense jurists at the Joseph Ballenger Campbell Courthouse willing to uphold the order and rule of law. When called upon by Canty to dismiss the case against Rodriguez outright on the basis of the violation of Rodriguez’s right to a speedy trial, Judge Smith refused to grant the dismissal, though he had leeway to do so based upon the 31 days of temporizing the district attorney’s office and the court engaged in before initiating Rodriguez’s trial. Similarly, he has acceded to the prosecution’s assertions that society cannot risk releasing Rodriguez without bail, despite the consideration that throughout the county at this time there are hundreds of defendants charged with far more serious offenses than Rodriguez at liberty on their own recognizance.
What has yet to play out is how far Judge Smith is willing to limit Rodriguez, and ultimately Gomez, in using the forum of the trial in vindicating themselves, and mounting the defense they are intent on making, one that holds they are being held to a far more exacting standard than others who are not on the outs with the Victorville political establishment. Judge Smith has yet to rule on whether Rodriguez is going to be able to call the Joneses, Metzler, de Bortnowsky, Davidson and Mendiola as defense witnesses. Mayor Jones, Ernest Jones and de Bortnowsky in particular, Canty, Rodriguez and Gomez contend, can shed considerable light on whether Ernest Jones was himself videotaping the July 20 city council proceedings. It was Rodriguez’s videotaping of the goings-on at the meeting, which is not expressly forbidden by law, that prompted Mayor Jones to stop the council discussion and interject the sheriff’s deputies into the situation to prevent Rodriguez from continuing his videotaping. Aside from the consideration that from her vantage at the council dais Gomez was herself videotaping the proceedings including members of the audience, a statement uttered by de Bortnowsky as the sheriff’s deputies were wading into the gallery to confront Rodriguez indicated that both Rodriguez and Ernest Jones were engaged in videotaping the proceedings. From their respective positions on the dais or in the room, Metzler, Davidson and Mendiola had knowledge of whether Ernest Jones was indeed videotaping the proceedings, Canty, Rodriguez and Gomez contend.
It is an unresolved question as to whether Judge Smith will allow the Joneses, Metzler, de Bortnowky, Davidson and Mendiola to be called as witnesses. It appears as if the prosecution believes it can make its case against Rodriguez without relying on them. If Judge Smith allows any or all of the six to testify, it is not clear whether he will allow them to be questioned about Ernest Jones’ videotaping of the proceedings. Judge Smith could rule that whether Ernest Jones was videotaping the proceedings or not is irrelevant with regard to Rodriguez’s actions, and that it is not Ernest Jones who is on trial, such that even if it can be established that Ernest Jones was videotaping the council proceedings, the prosecutorial discretion that lies with the district attorney’s office permitted prosecutors to arrive at a determination that Ernest Jones’ actions did not rise to the threshold of criminality while Rodriguez’s did. Conversely, Judge Smith could find that it is indeed relevant that Mayor Jones initiated action on the part of the sheriff’s deputies against Rodriguez based on activity that her husband, present at the same meeting, engaged in himself without interference.
By placing on the court record evidence of inconsistent treatment of Rodriguez at the hands of city officials and the sheriff’s department, Canty, Rodriguez and Gomez hope the jury will be persuaded that, at least as far as the July 20 incident goes, there is reasonable doubt as to what Rodriguez did was a crime. In a larger overarching context, establishing the discrepancy in the standards that are being applied to Gomez and her supporters as opposed to the standards reserved for her political rivals and their supporters will provide political fodder for Gomez.
By Mark Gutglueck